Tuesday, July 31, 2012

“Mafia” Crackdown Jettisons Judge for Discretion, Lawful Parole

Liu Deshan is out of a job after nearly 30 years as a judge in Henan province. In 2010, the provincial politico-legal committee (政法委) started investigating him for a sentence reduction he had approved six years earlier. The sentence reduction was for Bai Yugang. According to Xinhua, a sentence reduction led to Bai’s early release in December 2004, but Bai was arrested again in 2009 for additional crimes, including “organizing and leading a mafia-like organization,” during a nationwide crackdown on organized crime and illegal “cults.”

Defendants in the Bai Yugang trial make their final statements.
Source: Nanyang Intermediate People's Court

Investigation

According to the Southern Weekly report detailing his story, Liu Deshan was targeted after the Office of the National Coordinating Group for the Campaign to Crack Down on Organized Crime and Cults (全国打黑除恶专项斗争协调小组办公室) wrote in a report on Bai Yugang’s trial that “[Bai’s] protective umbrella has not been wiped out.” That report spurred the leaders of the Ministry of Public Security and the Office of the Central Committee for Comprehensive Management of Public Security (中央社会治安综合治理委员会办公室) to issue instructions to “actively correct” outstanding problems. These instructions prompted the provincial politico-legal committee to create a special group of 50 people to investigate.

The Southern Weekly report says that in the spring of 2010, Liu was investigated by the special group for eight days in a windowless room in a restaurant in Zhumadian city. He was then reportedly moved to another restaurant and held for 21 days under residential surveillance, where he was “deprived of sleep and seriously tortured.” On May 31, Liu was taken to a detention center where he would stay for 15 months before being released on bail.

Liu’s allegations—detailed in the Southern Weekly report—involve several procedural flaws and illegal practices. They also raise doubts about successful implementation of revisions to the Criminal Procedure Law, effective in 2013. For example, Article 121 of the revised law is meant to prevent the torture of people charged with “serious crimes” through the use of video and audio recording during interrogation. In 2006, the Supreme People’s Procuratorate released trial rules establishing synchronous audio and video recording for the interrogation of suspects in “duty crimes” (职务罪), which appear to have been loosely applied in Liu’s case. Discussing his experience during interrogation, Liu said: “It’s all an act. First they got me to totally submit … then they turned on the equipment to go through the formality.”

Trial

At the criminal tribunal of the people’s court in October 2010, the prosecutor claimed that Liu had violated an internal document of the provincial politico-legal system, which states that “in general, sentence reduction can only be given after the original sentence has been implemented for more than one and a half years.” In response, Liu argued that judges have discretionary power, and his decision was fully compliant with the Criminal Procedure Law and relevant judicial interpretations issued by the Supreme People’s Court.

Following a lengthy process of “internal instruction” that dragged on for nearly a year after his second court hearing, Liu received what he called a “flawed acquittal.” The verdict stated that though Liu’s conduct did not constitute a crime, he was “negligent” and “abused his power.” Despite his dissatisfaction with the verdict, the former judge believes that he is unlikely to win an appeal given the amount of high-level involvement in the case.

Emphasizing Severity

Liu’s career was apparently ruined for approving a sentence reduction that was in accordance with the law (as indicated by his acquittal) but out of step with a political campaign to “strike black and eliminate evil.” Although the Southern Weekly report does not provide details on Liu’s indictment or on the reasons for Bai’s sentence reduction, Liu may have found himself on the wrong side of the policy of combining leniency with severity (宽严相济).

Sentence reductions for people convicted of organized crime are to be “strictly handled,” according to Paragraph 34 of the Supreme People’s Court “Opinions on Implementing the Policy of Combining Leniency with Severity” (February 2010). Dui Hua has written about the opinion as a basis for leniency for juveniles and the elderly, but the list of people targeted for severity runs much longer. The first group named in Paragraph 34 is people convicted of “endangering state security” crimes, and thousands of political prisoners routinely face restricted access to sentence reduction and parole. For example, Dhondup Wangchen was sentenced to six years’ imprisonment for “inciting splittism” in 2009 and has been unable to obtain medical parole despite suffering from hepatitis B. Before his arrest, Wangchen produced a film in which he interviewed Tibetans about their lives under Chinese rule and their views on the then upcoming 2008 Olympics.

In this context, Liu’s case could be a warning that sentence reduction in sensitive, or potentially sensitive, cases is unacceptable regardless of procedural validity. Though found not guilty, Liu ultimately lost his job, demonstrating that Party discipline blocks the path to judicial independence with episodic crackdowns and politico-legal committees.